THE FOSTER REPORT

CHAPTER 2:
Form and Scope of the Enquiry

33. What exactly was I to enquire into, and what method was I to adopt for the enquiry ? Neither of those questions is easy to answer. On even the most cursory reading of Scientology's own literature, it becomes obvious that its "practices" are manifold and diffuse, and that their "effects" are hotly disputed. Besides, whenever a substantial number of people engage in some activity, the effects of that activity on them, and on others who are affected by it, will vary from person to person, so that it becomes impossible to relate the two in any sense other than a statistical one. Accordingly in such circumstances no hard and fast inferences can be drawn; at best hypotheses can be constructed whose validity will only be measured in terms of a greater or lesser degree of probability.

34. The problem of finding the appropriate form for this Enquiry was in many ways even more difficult. The procedure developed by our Courts of Law, admirable as it is, goes on the footing that there are specific issues to be tried, which can be resolved one way or the other by examining the evidence given according to certain well-established rules. Such a procedure is essentially an adversary one, and all its rules are developed on that basis and make little or no sense without it. Put a little more technically, our Court procedure is an "accusatorial", and not an "inquisitorial" one.

35. My task, on the other hand, is essentially inquisitorial. I have not been given issues to try, but a wide subject-matter to find out about. This problem is common to all impartial enquiries which are set up in countries enjoying a Common Law system, and it has been the subject of much debate. One way of resolving it is to turn the Enquiry into an accusatorial procedure, by framing specific issues and conducting a trial of these by the methods familiar to our Courts. This is the way in which, in practice, Tribunals of Enquiry are conducted under the Tribunals of Enquiry (Evidence) Act 1921, and in which the Anderson Board performed its task. Subject to certain necessary safeguards, this is a satisfactory way of ascertaining the fact about specific issues, provided these are clearly defined in the first place.

36. Had I conducted the present Enquiry in this fashion, I would first have had to specify a number of issues and thus put my own refined interpretation on my terms of reference. Further, I would have had, in relation to each of these issues, to find a party who was willing to put forward the case against Scientology, or to nominate Solicitors and Counsel who, while being amicable, would also act out the role of accusers of Scientology. Since I have no power to take evidence on oath, or to enforce the production of documents, or to exercise (even indirectly) any sanction for contempt if a witness refuses to answer questions (and the subject is one where people might well feel timorous about giving evidence), I would

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almost inevitably have had to decide many of these issues on unsatisfactory or incomplete evidence. Moreover, all parties would have been put to great expense in time and money with no possibility as the law now stands of recovering their outlay at the end of the day.

37. On these grounds, I came to the conclusion at an early stage that this form of Enquiry was unsuitable for the performance of my task, well though it may serve the public interest in the kind of case where a Tribunal of Enquiry is nowadays appointed under the 1921 Act, that is to say where there is a public crisis of confidence about the conduct of Ministers or other high functionaries of State, or where the nation's security may be involved.

38. The other alternative is to conduct the kind of inquisition where the Tribunal informs itself as best it can from such documents as are put before it and such witnesses as are willing to give evidence, unprepared by the taking of statements and untested by hostile cross-examination on behalf of interested parties. This is the procedure commonly adopted at the present day in what are (rather misleadingly) called "Departmental Enquiries" such as this one. The term is misleading because, although the enquiry is called for by the Minister at the head of the Department of State most closely concerned, it proceeds in total independence from that or any other Department, and its Report, though rendered formally to the appointing Minister, is concerned only to relate the facts found by, and the comments of, the impartial tribunal, regardless of the effect which these are likely to have on the Minister, his Department, or the policies of his Government or his political party).

39. Such a procedure avoids the problems inherent in using an accusatorial process for an inquisitorial enquiry, but it can create others no less serious. Lord Denning evocatively described his difficulties in acting as "detective, inquisitor, advocate and judge" when he sat in private, and unassisted by lawyers representing the conflicting interests, to investigate the Profumo affair in 1963. It was an exceptional case in two respects: first, the context of his Enquiry was one which, par excellence, might have been the occasion for the setting up of a public Tribunal of Enquiry under the 1921 Act; yet secondly, despite all handicaps, the manner of his investigation and the conclusions which he reached nonetheless commanded the unqualified respect of the country. The Royal Commission on Tribunals of Enquiry, under the Chairmanship of Lord Justice Salmon, later described the Denning Report as "a brilliant exception", and said:--

"Such a method of investigation is not objectionable where there is, in truth, no foundation for the rumours or allegations causing a nation-wide crisis of confidence. The Report will state the truth. The only defect in the procedure is that since everything takes place behind closed doors, the truth may not be generally accepted (33).

"If, however, there is in reality an evil to be exposed and any of the allegations or rumours causing the nation-wide crisis of confidence are true, it is extremely difficult, if not practically impossible, for the Report to establish the truth. When a person against whom allegations are made is not even allowed to hear the evidence

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(32) Cmnd. 3121.
(33) p. 37.

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brought against him, let alone to check it by cross-examination, when he has "never had the chance to rebut" the case against him, how can any judicially-minded Tribunal be satisfied, save in the most exceptional circumstances, that the allegations have been made out? In these most exceptional cases, if they ever occur, in which such a Tribunal felt justified in making an adverse finding against anyone, that person would feel and the public might also feel that he had a real grievance in that he had had no chance of defending himself. It follows that the odds against any such Tribunal being able to establish the truth, if the truth is black, are very heavy indeed, and accordingly the truth may remain hidden from the light of day (34).

"We recommend that no Government in the future should ever in any circumstances whatsoever set up a Tribunal of the type adopted in the Profumo case to investigate any matter causing nationwide public concern (35)." (My italics)

40. For myself, I agree wholeheartedly with these views. It does not, of course, follow that there can never be a proper occasion for this type of enquiry: indeed, the Salmon Commission itself accepted its suitability in the case of Departmental Enquiries (36), normally used to investigate matters which are causing public concern, but are not of such importance as to justify the appointment of a Tribunal under the 1921 Act. This was well exemplified quite recently by the Bognor Regis Enquiry (37), whose scope was the circumstances of a dispute between a local authority and its clerk, a question of great local, but little national, interest where the Tribunal (Mr. J. Ramsay Williams, Q.C.) in the event found no difficulty in ascertaining the facts, and in expressing conclusions thereon, by the use of a procedure very similar to that followed by Lord Denning in 1963.

41. In the present case, I am charged to investigate, not a limited dispute, but a wide-ranging complex of beliefs and practices, and their effects. I have come to the conclusion that I am more likely to do justice to this, without a disproportionate burden of time and cost, if I adopt a procedure of the kind outlined below.

42. (i) I have refrained from calling for any evidence adverse to Scientology, even where I have reason to think that such evidence might be available;

(ii) Where "adverse" statements, letters and the like have been sent to me either in response to the general call for evidence which I published at the beginning of my Enquiry or which have been otherwise volunteered, I have read them by way of general background and mentioned them in this Report, if I have mentioned them at all, only as evidence that these are the allegations which some people make against Scientology.

(iii) Despite the many offers which have been made, on all sides, to give oral evidence before me, I have heard no witnesses at all, since it seems to me that unsworn ex parte evidence, neither led, nor directed to any defined issue, nor tested by cross-examination, would have been of no value to me.

43. Having chosen this procedure, I have not thought it right to find any facts, or express any opinions, condemning Scientology or any of its practitioners, since they have not had the opportunity of meeting any case put against them.

44. Such conclusions as I have come to, and such opinions as I have expressed about Scientology, are therefore based either on documents which have their origins within the Scientology Organisations themselves, or on documents produced by others whose relevant contents I know to be admitted by the Scientology Organisations. In many, perhaps most, of the cases where the established procedure of a "Departmental Enquiry" is apt, such self-imposed limitations would probably defeat the end of the Enquiry. That it does not, as I hope, in the present case is due to the fortunate circumstance that the Scientology Organisations are highly - some might think excessively - prone to writing about themselves. The Founder of Scientology, Mr. Lafayette Ron Hubbard, is credited with a written output to date of some 16 million words, and he continues to write more and more of them as time passes. Moreover, the Scientology Organisations are organised, as will be seen, on distinctly bureaucratic lines, as most of their policies and activities are well-documented in internal policy letters, bulletins, directives and the like.

45. Broadly, the documents emanating from the Scientology leadership on which I have drawn for the purposes of my enquiry fall into two classes. The first consists of published material, intended for external consumption, such as the books of Mr. Hubbard and Scientology magazines and broadsheets like "The Auditor" or "Freedom Scientology". Most of this was furnished to me by the Scientologists themselves, in what I assume were up-to-date editions or reprints. A list of these appears in the bibliography.

46. The other class consists of documents designed for internal consumption within the Scientology organisations, variously called "HCO Policy Letters", "SECEDS", "Executive Directives", "HCO Bulletins" and the like, almost without exception over Mr. Hubbard's signature, and always with a copyright claim in his name. By July 1970 I had accumulated a good many of these from various sources, and to complete my records I asked the Scientology leadership to supply me with copies of all documents of this kind issued since 25th September 1965. Although they sent me a great many, it was obvious that there were gaps in the series. Their explanation, given by their Public Relations Officer, Mr. David Gaiman, was as follows:--

"I have a problem in regard to this request. I am doing my best to fulfil it. There have been reams of policy, EDs, and the like produced since 1965.

"There is a project in being to assemble and publish an Encyclopaedia of Policy but we are only now in a position to copyright the first volume. To the best of my knowledge it will contain up to date

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policy and not cancellations. We have only had a sight of one advance copy, and it was sent straight to the U.S. to be copyrighted.

"SECEDs, which are now called Executive Directives, expire after one year, and copies of old ones are sent to Archives. There are thousands of them.

"As I think I have said before, we have expanded faster than our administrative ability to keep up with it, and it is taking a long time to get the old records straight.

"Any staff member can propose and have published a policy document, and it is sometimes a matter of curiosity to me to find us accused of secrecy, by someone who comes armed to prove his point with vast pieces of documents obtained from goodness knows where. Most policy is put out under Mr. Hubbard's name, no matter whom the writer.

". . . I enclose herewith a very substantial amount of what you have requested.

"The Executive Directives cover the last year. It is no easy task to seek, copy and tabulate all back numbers for the past 5 years, and I hope after reading these you will not request them ".

47. However, the following extracts from a Hubbard Communications Office Policy Letter dated 14th April 1969 suggest to me that there may also be other reasons for the omissions:--

BULLETIN AND POLICY LETTER DISTRIBUTION

Effective at once, the following is the policy on Distribution of HCO Bulletins and Policy Letters issued from WW.

It is usually important that this does not get wide distribution as it has to do with Org know-how, planning, etc., and could be misunderstood. So it is not Remimeod or strewn about. It may be taken up in Staff meetings but that is about all. One never republishes a limited Non-Remimeo in a magazine.

GENERAL NON-REMIMEO

The same as Limited Non-Remimeo but somewhat broader. These usually deal with broader points of Admin or Tech of interest to one or two production departments as well as the HES, OES, PES.

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Again, they are never strewn about or broadly re-published as they could be misunderstood.

Amongst the policy documents sent to me by the Scientology leadership, none were marked "Limited Non-Remimeo" and only two were marked "General Non-Remimeo".

48. As for the continued validity of policy letters, Mr. Hubbard himself has this to say (38):--

Beware of other students "explaining things" in the Policy Letters or of Course Supervisors who say "That isn't used now". The data is the data and it is in the Policy Letters".

And again (39):--

"Sometimes a policy is interpreted incorrectly so that if one put it into effect fully as interpreted, loss and destruction would result. An instance of this was a type of course omitted from a policy letter. Someone did not query but instead closed the course and refunded thousands in advance payments. This was a misinterpretation of the policy which was only discussing course levels. The correct action of one and all would have been to have queried."

49. Although the Anderson Report was wholly unfavourable to Scientology, many of its findings have not been specifically challenged in any of the abundant Scientology literature which seeks to attack Mr. Anderson and his conclusions. No-one could reasonably expect a line-by-line denial, in every particular, of a Report of that length, but there are a number of findings in it which one would certainly expect to see denied if they were not accepted. Since Mr. Anderson took immense pains and investigated his subject in far more detail than anyone else, I have on a few occasions found it desirable for the sake of completeness or brevity to quote from his Report, the more so since all the evidence called before him was open to testing by cross-examination and rebuttal on behalf of the Scientology interests, the very thing which is absent from an Enquiry conducted by a procedure such as mine. However, where any such quotation is adverse to Scientology, I have given its specific attribution and also indicated whether it has been specifically admitted, or merely passed by, on the part of the Scientology leadership. Where there is no such indication, the quotation should be taken as denied.

50. According to the Scientologists, both their theories and their practices are subject to continual changes, and I have myself found some evidence for this. It has therefore happened more than once that some adverse comment or report has been met with the reply that it criticised an aspect of Scientology which has meanwhile been improved or abandoned. It is thus important to be up-to-date, and accordingly I have taken the following course:--

(i) While the Anderson Report contains much important material, that Enquiry was closed in April 1965 and its Report was rendered in September of that year. I have therefore treated its findings largely as a background, and focused my attention on the period which has elapsed since its publication.

(ii) The principal sources of information on which I have relied have been Scientology documents issued, published or republished after 25th September 1965, most of which were sent to me by the Scientology Organisations themselves, and can therefore be taken to be up to date.

(iii) Where I felt any doubt about the validity of my information, or where information I needed was not readily available in the documents I already had, I included a request for it in Questionnaires addressed to the Scientology leadership at Saint Hill Manor, and it will be seen that I have quoted at length from Mr. Gaiman's answers.

(iv) Where the Scientologists have claimed that there has been a change of policy during the period on which I have concentrated my enquiry, I have mentioned this in the appropriate place.

51. The picture which emerges, while not wholly simple, is yet tolerably clear. In the rest of this Report, I shall try to delineate it as best I can, basing myself with few exceptions on quotations from the Scientologists themselves. Within the scope of a Report such as this, the quotations must necessarily form only a sample of all their writings, but I have been at pains to select them in a manner which is justly balanced, and which presents a fair outline of the whole.

52. Like many other subjects, Scientology has found it necessary to develop a jargon of its own. This consists in part of neologisms like "engram", "thetan", or "obnosis", and in part of the use of existing words in the language in senses other than those of common usage: e.g. "button", "facsimile", "overt" or "squirrel". Others who have studied Scientology from the outside have therefore found it necessary to append a glossary to their reports, and this Report is no exception. I have, however, limited it to those words which are to be found in quotations which appear in this Report, and it therefore makes no claims to be exhaustive.

53. Finally, it will be seen that where I have been concerned with matters on which Scientology has been attacked, or which might be held to import some moral condemnation of those who organise it or practise it, I have refrained from expressing any views of my own, but have left the documents to speak for themselves. In this way, any reader of this Report is free to make up his own mind, relying on my assurance that my selection from the material has been free of bias.